[This opinion has been published in Ohio Official Reports at
80 Ohio St.3d 281.]
THE STATE OF OHIO, APPELLANT, V. BERTRAM, APPELLEE.
[Cite as State v. Bertram, 1997-Ohio-114.]
Criminal procedure—State’s appeal of a motion to suppress, made pursuant to
Crim.R. 12(J), is an appeal as of right—Appellate court is without
authority to review a prosecutor’s Crim.R. 12(J) certification of an
appeal.
1. The state’s appeal of a motion to suppress, made pursuant to Crim.R. 12(J),
is an appeal as of right.
2. An appellate court is without authority to review a prosecutor’s Crim.R.
12(J) certification that the granting of a motion to suppress has rendered the
state’s proof with respect to the pending charge so weak in its entirety that
any reasonable possibility of effective prosecution has been destroyed.
(No. 96-1792—Submitted September 9, 1997—Decided November 19, 1997.)
APPEAL from the Court of Appeals for Hamilton County, Nos. C-960005 and
C-960006.
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{¶ 1} On October 1, 1995, Corporal Clayton David of the Hamilton County
Sheriff’s Department Traffic Safety Section arrested appellee Robert J. Bertram for
a violation of R.C. 4511.19(A)(1), operating a vehicle while under the influence of
alcohol. On October 18, 1995, appellee moved to suppress any evidence obtained
as a result of the traffic stop, including any statements he had made. On November
17, 1995, appellee further moved to suppress “any statements of a refusal to give a
breath sample,” asserting that the arresting officer did not properly inform appellee
of the consequences of a refusal to submit to chemical testing. The trial court, on
December 21, 1995, granted the motion to suppress, thus denying admission of any
statements concerning the refusal.
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{¶ 2} The prosecutor appealed the trial court’s decision to the Hamilton
County Court of Appeals and certified, pursuant to Crim.R. 12(J), that (1) the
appeal was not taken for purposes of delay, and (2) the granting of the motion to
suppress rendered the state’s proof so weak that any reasonable possibility of
effective prosecution had been destroyed. Appellee filed a motion to dismiss the
appeal, asserting that there was indeed enough other evidence to prosecute the case
and thus the granting of the motion to suppress was not a final appealable order.
The court of appeals dismissed the appeal, finding that “there was probative
evidence adduced during the hearing, which was not subject to the court’s
suppression order, that was supportive of the state’s case against Bertram” and thus
the prosecutor unreasonably certified the case for appeal.
{¶ 3} The cause is now before this court pursuant to the allowance of a
discretionary appeal.
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Joseph T. Deters, Hamilton County Prosecuting Attorney, William E.
Breyer and Steven W. Rakow, Assistant Prosecuting Attorneys, for appellant.
Hal R. Arenstein, for appellee.
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ALICE ROBIE RESNICK, J.
{¶ 4} This case presents the issue of whether a court of appeals has authority
to review the reasonableness of a prosecutor’s certification of an appeal pursuant
to R.C. 2945.67 and Crim.R. 12(J).
{¶ 5} R.C. 2945.67(A) states:
“A prosecuting attorney … may appeal as a matter of right any decision
of a trial court in a criminal case, … which decision grants … a motion to
suppress evidence, … and may appeal by leave of the court to which the appeal
is taken any other decision, except the final verdict, of the trial court in a criminal
case … .”
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January Term, 1997
{¶ 6} Crim.R. 12(J) sets forth the proper procedure a prosecutor must
follow in order to initiate an appeal pursuant to R.C. 2945.67(A):
“When the state takes an appeal as provided by law, the prosecuting attorney
shall certify that: (1) the appeal is not taken for the purpose of delay; and (2) the
ruling on the motion or motions has rendered the state’s proof with respect to the
pending charge so weak in its entirety that any reasonable possibility of effective
prosecution has been destroyed.
“…
“If an appeal pursuant to this division results in an affirmance of the trial
court, the state shall be barred from prosecuting the defendant for the same offense
or offenses except upon a showing of newly discovered evidence that the state could
not, with reasonable diligence, have discovered before filing of the notice of
appeal.”
{¶ 7} R.C. 2945.67 and Crim.R. 12(J) establish the state’s right to appeal an
adverse ruling on a motion to suppress and the procedure for such appeals. The
General Assembly, in R.C. 2945.67(A), plainly drew a distinction between an
“appeal as a matter of right” from a ruling granting a motion to suppress and an
appeal “by leave of the court” from any other trial court ruling except the final
verdict. The words “by leave of the court” necessarily mean that the court of
appeals has the discretion to allow or refuse the appeal. By contrast, “appeal as a
matter of right” means that the court of appeals has no discretion to decide whether
to allow such an appeal. If the General Assembly intended to give the courts of
appeals the right to review the reasonableness of a prosecutor’s Crim.R. 12(J)
certification, it certainly knew the language to include in the statute to grant that
power, and it could have provided procedures and standards for courts of appeals
to follow in making their determination. The state’s appeal of the motion to
suppress, made pursuant to R.C. 2945.67, is not a discretionary appeal but rather
an appeal as of right. See State v. Fraternal Order of Eagles Aerie 0337 Buckeye
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(1991), 58 Ohio St.3d 166, 168,
569 N.E.2d 478, 481 (construing former Crim.R.
12[J]).
{¶ 8} Notably, Crim.R. 12(J) uses the term “certify,” meaning “to attest esp.
authoritatively or formally: … to confirm or attest often by a document under
hand as being true, meeting a standard, or being as represented.” Webster’s Third
New International Dictionary (1986) 367. Accordingly, by analogy to Civ.R. 11,
the prosecutor, by signing the certification, attests that he or she “has read the
document; that to the best of the [prosecutor’s] knowledge, information, and belief
there is good ground to support it; and that it is not interposed for delay.” Civ.R.
11. The use of the word “certify” is significant. “Certify” places an obligation on
the prosecution to comply with the requirements of the rule.
{¶ 9} The trial court and the court of appeals do not possess adequate or
complete prosecutorial information and, therefore, are unable to make an informed
judgment as to whether sufficient evidence remains to prosecute after the
controverted evidence has been suppressed. Only the prosecutor possesses the
complete work product files and is in an informed position to make this
determination for purposes of certification. Before the trial has taken place it is,
generally, solely within the prosecutor’s province to know the exact and complete
quantity, credibility, and sufficiency of the evidence against the defendant.
{¶ 10} Crim.R. 12(J) includes a sanction if the prosecutor appeals without
sufficient basis. If the court of appeals affirms the trial court’s granting of the
motion to suppress, the state is prohibited from “prosecuting the defendant for the
same offense or offenses except upon a showing of newly discovered evidence that
the state could not, with reasonable diligence, have discovered before filing of the
notice of appeal.” Accordingly, it is the prosecutor who incurs the risk of dismissal
of the charges. It is not for the courts to review the sufficiency of the evidence until
after the evidence has been properly submitted to the factfinder in a trial. Because
the state certifies that the trial court’s ruling has destroyed its case, the ruling is, in
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January Term, 1997
essence, a final order. See State v. French (1995), 72 Ohio St.3d 446, 449,
650
N.E.2d 887, 890; State v. Davidson (1985),
17 Ohio St.3d 132, 17 OBR 277,
477
N.E.2d 1141, syllabus.
{¶ 11} Finally, in State v. Fraternal Order of Eagles, supra,58 Ohio St.3d
166,
569 N.E.2d 478, syllabus, we held that “[w]here a motion to suppress is made
and granted after the commencement of trial, a trial court shall not proceed to enter
a judgment of acquittal so as to defeat the state’s right of appeal pursuant to Crim.R.
12(J).” In Fraternal Order of Eagles, the defendant filed a pretrial motion to
suppress certain prosecution evidence. The trial court granted the motion to suppress and simultaneously entered a judgment of acquittal, thus negating the need
for a trial. In its “Final Judgment of Acquittal,” the trial court stated that “ ‘[t]he
Court finding that the motion to suppress should be granted must necessarily find
that the remaining evidence of the State is insufficient to sustain a criminal
conviction. The Court therefore finds the defendant … not guilty. …’ ”
Id. at
167,
569 N.E.2d at 479.
{¶ 12} This court subsequently held that it is not for the trial court to
determine the sufficiency of the state’s evidence to proceed with the prosecution.
This court went on to hold that “the state must be permitted to determine whether
it will seek a stay of proceedings in order to exercise its right of appeal pursuant to
Crim.R. 12(J), or alternatively to proceed to a final verdict or judgment. The choice
is that of the prosecution.” Id. at 169,
569 N.E.2d at 481. This same reasoning can
be applied to an appellate court. An appellate court is without authority to review
a prosecutor’s Crim.R. 12(J) certification that the granting of a motion to suppress
has rendered the state’s proof with respect to the pending charge so weak in its
entirety that any reasonable possibility of effective prosecution has been destroyed.
The court of appeals may not therefore dismiss the prosecutor’s appeal for want of
a final appealable order based on the merits of the prosecutor’s certification.
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{¶ 13} Accordingly, we reverse the judgment of the court of appeals and
remand this cause to that court for further proceedings consistent with this opinion.
Judgment reversed
and cause remanded.
MOYER, C.J., DOUGLAS, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG
STRATTON, JJ., concur.
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